Kea v. State

Court of Appeals of Georgia, Fifth Division

January 12, 2018

KEAv.THE STATE

MCFADDEN, P. J., BRANCH and BETHEL, JJ.

McFadden, Presiding Judge.

In
these related appeals, Joseph Bernard Kea, III appeals from
his convictions for sexual battery (OCGA § 16-6-22.1),
pandering (OCGA § 16-6-12), and use of a license plate
to conceal the identity of a vehicle (OCGA § 40-2-5). He
argues that the evidence was insufficient to support the
convictions and that the trial court should have granted him
a new trial under the general grounds set forth in OCGA
§§ 5-5-20 and 5-5-21. Because the evidence
authorized the convictions for sexual battery and pandering,
we affirm the judgments in Cases No. A17A1555 and A17A1556.
Because the evidence did not authorize the conviction for use
of a license plate to conceal the identity of a vehicle, we
reverse the judgment in Case No. A17A1557 to the extent it
pertains to that offense. (Kea was also convicted of theft by
receiving in Case No. A17A1557. To the extent his
enumerations of error in Case No. A17A1557 encompass the
theft by receiving conviction, they are deemed abandoned
under Ct. App. R. 25 (c) (2) because he cites no authority
and presents no argument in support of any assertion that the
trial court erred in connection with that conviction.)

1.
Sexual Battery (Case No. A17A1555).

(a)
Sufficiency of the evidence.

In
reviewing a challenge to the sufficiency of the evidence to
support a conviction, the "relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319
(III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (emphasis in
original). In applying this standard, we do not resolve
conflicts in the testimony, weigh the evidence, or draw
inferences from the evidence, as those are functions of the
jury. See id. "As long as there is some competent
evidence, even though contradicted, to support each fact
necessary to make out the [s]tate's case, the jury's
verdict will be upheld." Miller v. State, 273
Ga. 831, 832 (546 S.E.2d 524) (2001) (citation and
punctuation omitted).

Viewed
in this light, the evidence showed that on August 15, 2015,
Kea interviewed A. B. for a dispatcher position at the
trucking company where Kea worked. Kea informed A. B. that
she was not qualified for the position but told her that he
was going to give her a "bonus." He asked her to
stand up, approached her with money in his hand, walked
behind her, then pulled her pants and underwear away from her
body and moved his hand downward, trying to put the money in
her pants. A. B. turned around to stop Kea and asked what he
was doing. Later that day A. B. reported the incident to the
police.

This
evidence was sufficient to authorize the trial court to find
that Kea committed the offense of sexual battery, which is
committed when a person "intentionally makes physical
contact with the intimate parts of the body of another person
without the consent of that person." OCGA §
16-6-22.1 (b). Kea argues that there is no evidence that he
made physical contact with A. B.'s intimate parts. But
the term "intimate parts" includes the buttocks,
OCGA § 16-6-22.1 (a), and A. B. testified that Kea
placed his hand in the area of her buttocks and touched her.
Kea also argues that there is no evidence that he intended to
touch A. B.'s buttocks. But

[t]he intent with which an act is done is peculiarly a
question of fact for determination by the [factfinder].
Intent, which is a mental attitude, is commonly detectible
only inferentially, and the law accommodates this. The [trial
court] could certainly infer from [Kea's] actions [of
trying to put money down the back of A. B.'s pants] that
he acted with the intent to [make physical contact with an
intimate part of her body, her buttocks].

Citing
OCGA §§ 5-5-20 and 5-5-21, Kea argues that the
trial court should have exercised her discretion to grant a
new trial on the general grounds, that is because her finding
of guilt was decidedly and strongly against the weight of the
evidence. We disagree.

OCGA
§ 5-5-20 provides that "[i]n any case when the
verdict of a jury is found contrary to evidence and the
principles of justice and equity, the judge presiding may
grant a new trial before another jury." (Emphasis
supplied.) OCGA § 5-5-21 provides that "[t]he
presiding judge may exercise a sound discretion in granting
or refusing new trials in cases where the verdict may be
decidedly and strongly against the weight of the evidence
even though there may appear to be some slight evidence in
favor of the finding." (Emphasis supplied.) We note that
while a bench trial does not involve a jury and, technically,
"there is no verdict in a bench trial, "
Woodham v. State, 253 Ga.App. 112, 113 (1) (558
S.E.2d 454) (2001) (citations omitted), a motion for new
trial raising the general grounds is a proper means of
seeking retrial or reexamination in the trial court of that
same court's decision on an issue of fact. Gully v.
Glover, 190 Ga.App. 238, 239 (1) (378 S.E.2d 411)
(1989).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;But our
review of this claim is limited to the legal sufficiency of
the evidence under the standard set forth in Jackson v.
...

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